A district court judge had said Graham must appear, but narrowed the range of questions prosecutors can ask.
Without a stay of the lower courts’ rulings, Graham’s lawyer Donald F. McGahn told the Supreme Court, “Senator Graham will suffer the precise injury he is appealing to prevent: being questioned in state court about his legislative activity and official acts.”
McGahn, a former counsel to Trump, asked Justice Clarence Thomas, the justice designated to hear emergency requests from the 11th Circuit, for at least a temporary stay. He said Graham could be required to testify “in less than a month.”
Thomas could act on the request on his own or refer the matter to the entire court.
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The Atlanta grand jury investigating alleged 2020 presidential election interference has already heard testimony from several Trump lawyers, including Rudy Giuliani, John Eastman and Boris Epshteyn. Willis also wants to question former White House chief of staff Mark Meadows.
Graham would be asked to testify about calls he made to Georgia election officials soon after Trump lost the election to Joe Biden. Prosecutors say Graham has “unique knowledge” about the Trump campaign and the “multistate, coordinated efforts to influence the results” of the election in Georgia and elsewhere.
But Graham has said his actions were legitimate legislative activity protected by the Constitution’s “speech or debate clause.” The senator’s lawyers have said that they have been informed that Graham is a witness — and not a target — of the investigation.
Last month, a district court judge said prosecutors could not question Graham about portions of the calls that were legislative fact-finding. But the judge said Willis’s team could explore possible coordination with the Trump campaign in its post-election efforts in Georgia; public statements regarding the 2020 election; and any efforts to “cajole” or “urge” Georgia election officials.
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In its order Thursday, the 11th Circuit panel agreed with the lower court judge that those actions “could not qualify as legislative activities under any understanding of Supreme Court precedent.” Two of the three judges on the panel were nominated by Trump.
Graham may still assert his rights, the court noted, if there is a dispute about certain questions.
McGahn said the case should not proceed without Supreme Court weighing in. “The district court’s refusal to quash or at least stay this impermissible questioning—and the Eleventh Circuit’s cursory acquiescence, while misquoting the ‘Speech gold Debate Clause, ‘failing to invoke or apply the standard for a stay, and without so much as mentioning sovereign immunity—cries out for review,” he wrote.
McGahn said the district attorney can continue the investigation without Graham by questioning “other witnesses who are not immunized by the United States Constitution.”